Opinion
No. 70-663
Decided December 2, 1970.
Elections — Action to prevent Secretary of State from counting votes — R.C. 3517.08 et seq. — Corrupt Practices Act — Mandamus — Relief denied, when — Relief sought injunctive in nature — Not within original jurisdiction of Supreme Court — Adequate remedy at law available — Case moot.
IN MANDAMUS.
Mr. Richard B. Kay, in propria persona. Mr. Paul W. Brown, attorney general, and Mr. John M. West, for respondent.
This is an action in mandamus originating in this court. Relator, a candidate for the United State Senate of the American Independent Party, seeks to prevent respondent, Secretary of State, from counting the votes cast at the November 3, 1970, election for Howard Metzenbaum as a candidate for United States Senate. The cause is before the court on the petition of relator and answer of the respondent.
Relator alleges that he filed a complaint under R.C. 3517.13, charging Metzenbaum with violation of R.C. 3517.08 through R.C. 3517.12 (Corrupt Practices Act), and seeks to prevent respondent from counting the votes cast for Mr. Metzenbaum.
In this action, relator seeks to obtain a writ of mandamus to prevent respondent from counting the votes. Mandamus is remedial in nature and commands the performance of a duty enjoined by law. Relator does not seek to compel the performance of a duty, but rather to prevent respondent from performing an act. Although relator designates his action as one in mandamus, the relief he seeks is injunctive in nature. The original jurisdiction of this court, conferred by the Constitution, extends only to mandamus, quo warranto, habeas corpus, prohibition and procedendo. This court does not have authority to entertain an original action in injunction. State, ex rel. Smith, v. Indus. Comm. (1942), 139 Ohio St. 303.
Further, relator has an adequate remedy at law. If he should prevail in his action under R.C. 3517.13, that section provides that if the candidate is found to have violated those sections such candidate shall forfeit his election to the office.
Finally, the election to which this action is directed has now passed and Metzenbaum was not elected; therefore, the case is now moot.
Writ denied.
O'NEILL, C.J., HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.
SCHNEIDER, J., concurs in judgment only.